The evidence
20 At the time of its making and at the time of my considering this application, the order was supported by an affidavit of Phillip Chapman of the Australian Federal Police sworn 11 December 2003 to which was annexed his affidavit of 8 July 2003.
21 Subsequently, on 30 January 2003, after the making of the order, Mr. Chapman swore and filed a third affidavit concerning certain aspects of his second affidavit. By reason of s.42(4), the content of that affidavit is before me considering the application in addition to the content of the two previous affidavits, even though it was not before the court at the time of the making of the order.
22 In the original affidavit placed before Kirby, J., who made the restraining order, it appeared that the money was suspected of having been the proceeds of the indictable offence of money laundering contrary to Part 10.2 of the Criminal Code of the Commonwealth. In that and the earlier affidavit was set out the necessary expression of suspicion and the asserted grounds for that suspicion. By making the order, Kirby, J. (albeit ex parte) held that he was satisfied there were reasonable grounds for that suspicion. There was no evidence before Kirby, J. or before me from the applicant nor cross-examination nor factual challenge to the affidavits relied on by the DPP. The applicant relied entirely on the arguments of law.
23 At the hearing, both parties filed written submissions and further submissions and there was extensive argument as to the scheme of the Act and the proper construction of s.42, in particular, s.42(5).
24 Notwithstanding the applicant has contented itself with legal argument, since the DPP relied and relies on money laundering as the foundational offence, and in order to understand the context of the legal submissions, regard must be had to the provenance of the money standing to the credit of the applicant in the Hong Kong account as appears from the evidence.
25 In summary, the money was asserted to have been the proceeds of an international funds transfer to the Hong Kong account from Australia by Sunshine Worldwide Holdings Limited, a company associated with one Hendra Rahardja prior to his death. He, it was asserted, had committed crimes in Indonesia from which the proceeds had been used to deal in property in Australia and put money into bank accounts in Australia, either personally or through various companies, including using Sunshine Worldwide Holdings Limited, thus committing money laundering offences against Australian law.
26 The affidavit material before Kirby, J. condescended to considerably greater detail of the dealings in property of Sunshine Worldwide Holdings Limited, Hendra Rahardja and companies associated with him or over the management of which it is said he had effective control. It was particularly asserted that the monies in the relevant account had, immediately prior to the transfer to Hong Kong, been obtained by the sale of property in Bullbarnet Road, Moora in Western Australia.
27 Paragraphs 3(j), (k), (l) and (m) of the affidavit of Mr. Chapman of 11 December 2003 read as follows:-
"(j) I have sighted documents obtained by the authorities of the Hong Kong SAR which were provided to Australia in response to a Mutual Assistance request which shows that South East Group Limited is a company incorporated in Bermuda and that it was known as Benelux International Limited until 16 April 1998. These documents also show the address of South East Group Limited as Flat 1103A 11/F block 1 Admiralty Centre, 18 Harcourt Road, Central Hong Kong.
(k) I have sighted copies of documents filed with the Hong Kong stock exchange extracted by AFP financial analyst Shaun Mark from the internet on 5 May 2003 which show that Cheong Swee Khent was Executive Chairperson of South East Group Limited until 24 September 2002. It appears from those documents that Budiman Rahardja replaced Cheong as Executive Chairperson on that date. Cheong is the widow of Hendra Rahardja and Budiman Rahardja is his son. It is apparent that South East Group Limited is part of the Rahardja group of companies. That is confirmed by the AUSTRAC data attached to the Rahardja affidavit, which shows that were numerous transfers of money between South East Group Limited/Benelux International Limited and Australian companies and individuals. It follows that there is no reason to think that the money in the bank account at HSBC has lost its status as proceeds of crime by operation of s.330(4)(a) of the Act or any other provision of the Act.
(l) I have sighted documents by the government of the British Virgin Islands which were provided to Australia in response to a Mutual Assistance request which show that:-
(a) Sunshine Worldwide Holdings Limited is a company which was incorporated in the British Virgin Islands on 5 November 1998;
(b) its Agent is Commonwealth Trust Limited of P O Box 3321, Road Town, Tortola, British Virgin Islands;
(c) the Registered Office of Sunshine Worldwide Holdings is at the offices of Commonwealth Trust Limited, P O Box 3321, Road Town, Tortola, British Virgin Islands.
(m) I have sighted documents obtained from the Australian Securities and Investments Commission on 9 December 2003 which show that Sunshine Worldwide Holdings Limited as an Australian Office registered in Australia at 'Full Sea International Limited, 192-196 Parramatta Road, Ashfield, NSW, 2131'. However, enquiries have established that the property at Parramatta Road, Ashfield, NSW has been sold and none of the Rahardja companies have any continuing connection with that address."
28 The earlier affidavit to which that affidavit referred, ie., the affidavit of Mr. Chapman of 8 July 2003, referred to the suspicion held by the officer that the properties and the money held in the bank accounts were the proceeds of indictable offences, namely money laundering, having regard to what he had been informed of by the Acting Director of Criminal Law, Director General of Legal Affairs, Department of Justice of the Republic of Indonesia on a request for extradition.
29 It was contended that the crimes of the deceased Rahardja produced a total loss to the Central Bank of Indonesia of A$390 million of which some A$38.5 million came to Australia. The deceased had been convicted in Indonesia on 18 March 2002 in absentia of charges relating to this matter and was sentenced to life imprisonment and fined 30 million rupiah. That affidavit referred to details of property transactions conducted by or on behalf of the deceased after he left Indonesia following the making of the illegal bank loans to which I will later refer.
30 The Bullbarnet Road property was purchased on 1 February 1999 by Good Cloud International Limited, a company of which Rahardja was a director until 31 March 1999. He was arrested in Australia the following day. That property with certain plant, livestock and machinery was sold on 20 March 2003 for A$1.255 million by Sunshine Worldwide Holdings and on 28 April 2003 A$1.280 million was deposited to the applicant's credit in the Hong Kong account by that company.
31 Appended to the affidavit is an extensive document referring to the obtaining of monies from the P T Bank, Harapan Sentosa in Jakarta, Indonesia, a bank of which the deceased and his family were the major shareholders and of which the deceased was the President Commissioner supervising the directors responsible for the granting of loans and the provision of reports to the Indonesian Central Bank. Loans in excess of one billion rupiah were required to be approved of by at least two members of the board or by him. The bank granted loans to six companies owned by the deceased and his family which dealt in the property sector. The total amount of loans exceeded the maximum legal credit limit thus causing the making of such loans to be an offence. The amounts lent were nearly six times the bank's capital at the relevant time. The loan funds were never received by the six companies but were received and used by the deceased for his own use. They have never been repaid. Bank Indonesia paid out 2,233,524,000,000 (two trillion, two hundred and thirty-three billion, five hundred and twenty-four million) rupiahs to the deposits of the bank of this account. The original loans were granted between 1991 and 1996. It was the making of those loans which the applicant submitted was the relevant criminal activity. The use of the money obtained from that activity in Australia in various transactions, including by Good Cloud International Limited, and the transmission to the account in Hong Kong were relied on by the DPP as suspected money laundering and to trace the monies back through the various dealings said to be suspected of being money laundering offences to that original criminal activity.
32 The subsequent affidavit of Mr. Chapman, while correcting certain information in the earlier affidavits, referred to the deceased's widow, as being a director of Sunshine Worldwide Holdings Limited, entering into company transactions between Sunshine Worldwide Holdings Limited and Good Cloud International Limited, and asserts that there was a reasonable suspicion that Sunshine Worldwide Holdings Limited was a company controlled by the deceased at the relevant time, even though he was not formally a director.